As I mentioned in a previous post, we just had our every-3-year JCAHO site survey. One of the surveyors made a comment that "variability creates vulnerability" and that phrase really...
Last year, one of the emergency room physicians called me to ask my advice when one of his patients wanted to film himself being sutured and stream it live to Facebook. Today, one of the hospitalists contacted me because a patient wanted to video his hospital encounter for pain management. In the first case, the patient was looking to create “reality TV” for public entertainment. In the latter case, the patient was using the threat of public exposure in order to coerce the physician into prescribing narcotic medications.
The patient was admitted with a medical condition that can cause pain but is almost always associated with abnormal blood tests. In this case, all of the blood tests were normal and there were some suspicious discrepancies in the patient’s history that caused the physician to suspect opioid-seeking behavior on the part of the patient. In the past, we have had patients use all sorts of behaviors to get their physician to prescribe opioids. I’ve had patients threaten to call the State Medical Board about their physician. When his physician refused to prescribe oxycontin, one patient called the medical staff office to report that his physician was intoxicated (we immediately did an alcohol breath test – it was negative). But this was taking coercion to a new level.
It is pretty common for patients to ask to record their visits in the outpatient clinic and the vast majority of the time, it is for very appropriate reasons. Patients often have a hard time remembering all of the information that you’ve given them and they want to be sure that they get their medical instructions right. Sometimes, they have family members who will ask: “What did the doctor say?” and they want to be sure that they get it right. I was taken aback the first time that happened to me but now, I don’t find it intrusive – usually it is a way to improve my patients’ compliance with medical instructions and a way to be sure that everyone in the family hears the same thing. I admit, I am a little more cautious about what I say and how I say it… but then, maybe that is how I should always be.
From a legal standpoint, patients can record their conversations with you, even if they don’t tell you that they are recording you. In Ohio (as in most states), a conversation can be legally recorded as long as one party consents to it. This means that anyone can legally record a conversation with anyone else in secret. Video is treated pretty much the same as audio. The legal case of Smith versus the Cleveland Clinic in 2011 illustrates this. A patient died in the hospital and afterward, the family asked to meet with the hospital medical director and secretly recorded the conversation; the court ruled that the recording was admissible as evidence in the subsequent malpractice case. As the paparazzi will attest, it is perfectly legal to take photographs or videos of anyone as long as you are on public property. Hospitals are generally considered a public place, in this regard.
Should physicians wear body cameras?
Police are being pressured into wearing body cameras both because of the fear from some members of the public that the police are being abusive and because of the fear that many police officers feel that they are being inappropriately accused of being abusive. Jeremy Brown, MD, the director of the National Institutes of Health’s Office of Emergency Care Research, proposed that body cams should be standard equipment for emergency department physicians. I’ve been an expert witness for dozens of defense malpractice cases and can’t count the number of times the plaintiff will make an allegation about something totally outlandish that they claimed that the physician said with the astonished dependent physician’s response of “I never said that”.
So what should the physician do? Most of the time, an audio or video recording is a way of improving patient care and can be the physician’s friend, not foe. But this was a pretty unique situation where a patient took advantage of a physician being uncomfortable being filmed in order to pressure the physician into prescribing narcotics. Here are my suggestions:
- Treat every patient encounter as if it is being recorded. The reality is that patients are going to record your encounters, in secret and when you least expect it. Make your words count and never say disparaging things to patients whether you are being recorded or not.
- Someone is listening when the patient is under anesthesia. There are abundant cases of physicians sedating patients for procedures or surgeries and then saying sarcastic or insulting things about patients when they think the patient can’t hear only to learn in court that the patient turned his cell phone on to “record” before the procedure started or that one of the operating room staff was secretly recording the procedure. Don’t say anything about a patient when they are asleep that you wouldn’t say to them when they are awake.
- For most recordings, use them to your advantage in order to ensure that patients get your instructions right and to ensure that all of the family members hear the same thing about diagnosis, prognosis, treatment, etc.
- Although the patient can secretly record you, you can’t secretly record them. HIPAA laws prohibit you from mishandling personal health information. If a patient records an encounter with you and posts it to his/her Facebook account, there is not much you can do. But if you secretly record a patient encounter and post it to your Facebook account, get ready for court and possible jail time.
- Let patients know that recording your encounter with them can affect their care, possibly in a negative way. Stage fright is a very real thing. I’ve hosted more than 700 OMEN-TV shows and MedNet webcasts – I’m pretty comfortable being in front of the camera now but it wasn’t always that way and for the first few years, my heart would race and my stomach would have butterflies for the hour before the shows would start. Although some physicians could sew up a facial laceration just as well on-camera or off-camera, many physicians would get shaky hands on camera and that could result in a worse outcome. Would the Mona Lisa have turned out as well if da Vinci had a hundred people watching his every brushstroke? Maybe… but probably not.
- The doctor-patient relationship is built on a foundation of trust and so the doctor should let the patient know that non-consented recordings could be a violation of that trust and preclude you from providing care in the future.
The world has become a very small and very public place. We are recorded on some surveillance camera or another whenever we walk down a city block. People have their cell phone in holsters ready to draw at the first sign of anything newsworthy on our streets and our public places. When you walk into a grocery store or a bank, your picture has been taken. Like it or not, we are filmed by someone almost every day. The hospital has become no different.
May 31, 2017